The Magistrate is not bound by the findings of the police and can differ in suitable cases. A prima facie case under the relevant sections of the Indian Penal Code must be considered for framing charges.

1. This application has been filed for quashing the order dated 24.6.2002 passed by Judical Magistrate 1st Class, Danapur in Naubatpur P.S. Case. No. 56 of 2000, T.R. No. 140 of 2000 by which the learned Magistrate has refused to entertain the petition dated 15.4.2002 filed by informant requesting to frame charges against the accused persons under sections 307 and 395 of the Indian Penal Code.

2. It has been submitted on behalf of the petitioners that the informant had filed the aforesaid petition on the basis of the materials available against the accused persons in the case diary and also on the basis of complaint-cum-protest petition filed by the informant on 16.6.2000. Refusal of the prayer for framing charge under sections 307 and 395 of. the Indian Penal Code will amount to miscarriage of justice and it requires interference by this Court.

3. It is will settled that the cognizance is taken of the offence and not of the various sections mentioned in the charge sheet. It is equally settled that the Magistrate taking cognizance of the offence is not bound in any way with the findings of the police and can in suitable cases differ from the same. In the present case the allegation against the accused, ten in numbers, is that the they were committing theft of banana and when protested they used force and assaulted the informant with farsa in order to take away banana. Thus, clearly a case of robbery is made out and since the number of accused was ten, the case of dacoity is made out. It is also clear that a sharp cutting weapon like Farsa was used by which blow was given on the head, a vital part of the body, case under section 307 of the Indian Penal Code is also made out In view of above prima facie case, under sections 307 and 395 of the Indian Penal Code is made out against the accused persons. Accordingly the order impugned is hereby quashed and the case is remanded back to the learned Magistrate to proceed in the case with the aforesaid observation in accordance with law. Accordingly, this application is allowed.